Findings Of Fact Respondent, Colin Spruce, was issued a certified residential contractor's license, No. CR-COI5679, in an active status, in June, 1930, as an individual. This license was renewed, as an individual, for the 1981-83 licensing period, which expired on June 30, 1983. This license has not been renewed and is in a delinquent status. Respondent at no time qualified Angle Enterprises, Inc., to engage in contracting in Florida. James D. Roland and his wife own nine low-income family apartment buildings in Melbourne. On November 2, 1981, the Rolands signed a contract with Respondent to rehabilitate these apartments with funds provided on loan from the federal government. Respondent signed the contract on November 3, 1981, and began work on November 9, 1981. He fully completed one of the nine buildings and partially completed one other. He also did some work on the roofs of all. On or about January 13, 1982, Respondent called Mr. Roland's home and left word he would be out of town for several days. He never returned to work on the project. The work was 35 percent complete when Respondent abandoned the project. Later, Mr. Roland completed the project himself at an overrun of approximately $2,500 above the contract price. Aside from one minor modification which cost an additional $261, there were no changes to the plans and specifications when Roland took over. It was only later that Roland got word that the subcontractors had not been paid. He paid off those who filed liens against his property. During the course of his work on the Rolands' property, Respondent, in his own name or as Angle Enterprises, Inc., entered into agreements with several subcontractors, including Scotty's, Berger Roofing, Melbourne Insulation, City Gas Co., and Jackson Electric, all of which provided either materials or services, or both, for this project. Scotty's provided materials valued at $16,513.24, but was paid only $6,751.46, leaving an unpaid balance of $9,761.78 for which the company filed a lien against the Rolands' property. This sum, left unpaid by Respondent, was subsequently paid by Mr. Roland. Berger Roofing, Inc., furnished labor and materials for the porch roofs on each of the project's buildings during late November and early December, 1981, and was due $750 from Respondent for this job. Respondent did not ever pay, and Berger also filed a lien against the property. This lien was also satisfied through payment by Mr. Roland. Melbourne Insulation furnished labor and materials to the project through contract with Respondent for approximately $2,000 of which only one-half was paid by Respondent. The balance has not been paid, though no lien was filed here because of an oversight by claimant's lawyer. City Gas Company is still owed $1,524.75 of the $4,784.33 it billed Respondent for labor and materials (heaters) it provided for the project for a contract it had with Respondent dated December 1, 1981. No lien was filed for the unpaid amount here, either. Jackson Electric performed electrical work on the project which included removing plates, switches, and fixtures from one of the buildings in November, 1981, based on an agreement with Respondent. The contractor was about to start work on a second building in the project, but due to the fact that Respondent was a slow payer on previous jobs done for him, the additional work was not started and Jackson was never paid for the work done. Respondent also failed to pay the wages he owed to several of his employees, including David Jones and Carl Cramer. Jones worked for Angle Enterprises, the company owned by Respondent and under which he did business from November, 1981, to January, 1982, in a job on Roland's buildings which involved stripping the roofs off the buildings and painting. He was not paid for his final week of work, which ended on January 15, 1982. He is owed for 32 hours work at $5.75 per hour. He considered himself a close personal friend of Respondent who gave no advance notice that he would not pay his employees. Cramer and a third employee (Mr. Kibben) also were not paid their earned wages by Respondent. He was working at the time in question as a carpenter/foreman for Respondent. On the last morning of work, Friday, January 15, 1982, Respondent told him that the accountant would come by and pay him and the other men that afternoon. Respondent then left and was not seen again, nor was the accountant or the wages. Cramer was due 32 hours pay at $7 per hour. During the time he was working on this project, Respondent submitted four draw requests and was paid on three. These draws were submitted to Mr. Grinstead at the Community Development Office for approval and were approved when Grinstead checked to see that the approximate work was done. Mr. Grinstead was at the project site almost every day. The last time he saw Respondent there was on or about January 15, 1982. As of that date, the work was not completed, but Respondent did not go back. Mr. Grinstead approved three draws. These were: December 10, 1981, for $13,000 payable to Roland, Respondent, and Scotty's; December 21, 1981, for 54,000, payable to Respondent; and January 8, 1982, for $13,000 payable to Roland, Respondent, and Scotty's. A fourth draw request on December 12, 1981, for $2,400 was denied by Y. Grinstead because sufficient additional work was not done to justify it. All three approved checks were cashed. As to the check for $13,000 dated January 8, 1982, Roland signed it and Respondent took it to Scotty's, where he convinced the credit manager to endorse it in exchange for his, Respondent's (Angle Enterprises'), check dated January 11, 1982, in the amount of $7,446.61. Thereafter, the same day, Respondent signed a stop-payment order at his bank on which that check was drawn, listing as his reason for that action a corporate reorganization. Payment was stopped, and Scotty's was not paid by Respondent. On the basis of Respondent's conduct regarding the check, an information charging him with altering a worthless check and grand theft (second degree) was filed in the Circuit Court in Brevard County, Florida, on June 1, 1982. Thereafter, on November 30, 1982, Respondent entered a plea of guilty to both offenses and was placed on probation for five years. Conditions of probation included full restitution of the $13,000 and a prohibition from engaging in construction or repair services without permission of the court.
Recommendation Based on the foregoing, it is, therefore: RECOMMENDED: That Respondent's certified residential contractor's license be revoked. RECOMMENDED in Tallahassee this 5th day of April, 1984. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Colin Spruce 1001 SW Conover Avenue Palm Bay, Florida 32907 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The following issues were raised in the facts presented at hearing: Was Combs' affidavit executed in accordance with provisions of Section 215.19, Florida Statutes? Were the construction projects upon which Combs worked exempt from the provisions of Section 215.19, Florida Statutes? Did Combs settle the claims presented?
Findings Of Fact Keith Dwaine Combs was an employee of Acco Mechanical Contractors, Inc., on three related projects at Broward County Community College, the trustees of which were the contracting authority. Combs' duties were those of a sheet metal worker. He was paid $5.50 per hour. The prevailing wage for these projects for sheet metal workers was $10.55 per hour as established by the Department of Commerce. Combs worked 240 hours on these projects and prepared an affidavit claiming he was under paid $1,212. Combs then worked an additional 80 hours on a related prevailing wage job and amended his original affidavit by adding the additional 80 hours and $404 to the amount of his claim. Combs initiated these additions to his original affidavit and resigned the affidavit, claiming a total of $1,616. Combs did not have the affidavit renotarized after he had made the amendments. Combs filed his claim with District Board of Trustees for Broward County Community College. Combs then entered into negotiations with Acco Mechanical Contractors, Inc., and eventually accepted payment of $597 less FICA and withholding taxes in settlement of his claims, and executed a release of all pending claims against Acco.
Recommendation The Hearing Officer recommends that the claim of Keith Dwaine Combs be denied. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire 2900 East Oakland Park Boulevard Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Jeff M. Brown, Esquire 3705 North Federal Highway Post Office Box 1138 Boca Raton, Florida 33432 Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was subjected to an unlawful employment practice, namely discrimination on the basis of age, with regard to Respondent's hiring of another applicant for the position sought by Petitioner. A secondary issue is whether Petitioner was constructively terminated from employment as a result of age discrimination.
Findings Of Fact Petitioner, Robert Jones, was born October 27, 1941. He was 52 years of age in March of 1994. Respondent is National Healthcare Center, a retirement home for elderly persons. Prior to March 28, 1994, the maintenance department at Respondent's facility consisted of one supervisory employee and one part-time employee, Jones. On March 28, 1994, Jones' immediate supervisor within the maintenance department resigned, effective April 8, 1994. In addition to his employment three days a week in the maintenance department, Jones also worked two days a week on the payroll of Respondent's facility in the housekeeping department. The administrator for Respondent's facility advertised the vacant maintenance supervisor position in the local newspaper. Approximately 35 applicants, including Petitioner, applied for the position. The administrator interviewed Petitioner and eight other applicants for the position, including the applicant who was eventually hired for the position. James French, the applicant hired for the position of maintenance supervisor, was serving as the head of maintenance at a 17 story, 163 unit condominium facility at the time of the interview. French supervised maintenance assistants at the condominium facility and was responsible for a wide array of maintenance services ranging from electrical, carpentry, plumbing, heating and air conditioning repairs to tests and maintenance of an emergency backup generator. The administrator, Steven Rykiel, was impressed by French and his eight years of maintenance experience. Rykiel was no novice in the hiring of personnel to run departments in facilities like Respondent's, having supervised the opening of a similar facility in Niceville, Florida where he hired department heads. Rykiel particularly liked French's expressed approach to performing maintenance: Fixing or repairing problems before the problems were pointed out by the boss. A comparison of French's candidacy for the maintenance supervisor position with Petitioner's reveals that French had recent experience in the supervision of maintenance personnel. While Petitioner had prior supervisory experience in other employment, he had not supervised employees since 1989. Rykiel followed his normal procedure in selecting the person to head the maintenance department at Respondent's facility. He reviewed the applications, interviewed the applicants, and checked the references of the one applicant who impressed him, James French. Ages of the respective applicants were not considered by Rykiel in his hiring decision. He was unaware of the age of either French or Petitioner at the time of their respective interviews. As previously noted, Petitioner was 52 years of age. French was 36 years of age. At the final hearing, Petitioner recanted his notarized statement in the Charge Of Discrimination dated July 18, 1994, which, in pertinent part, reads as follows: I trained the new supervisor and familiarized him with the inner workings of the nursing home until my resignation became effective on May 6, 1994. As explained by Petitioner at the final hearing, his sworn statement is technically untrue but he felt that he would be required to train the new supervisor and, consequently, decided to resign his position. Respondent's employee manual provides a procedure for employees to seek transfers and promotions. The manual does not set forth a directive requiring existing employees to be promoted over hiring a new employee. Specifically, the manual provides "[w]hen possible, a vacancy could be filled by a qualified employee of the health care center." Respondent does not have any policy that directs employment decisions be based on age of applicants. Rykiel did not hired French over Petitioner because of Petitioner's age. Petitioner was not told that he would have to train French. Consequently, there is no evidence to establish that such a directive placed Petitioner in intolerable working conditions. Although Petitioner has never failed, in the course of employment throughout his life, to obtain promotions sought by him, failure to obtain promotion in this instance does not constitute an intolerable working condition. Petitioner did not request a meeting with either Rykiel or any other higher superior in Respondent's organization, an opportunity provided by Respondent's procedures manual, prior to Petitioner's submittal of his voluntary resignation. Petitioner's resignation was submitted prior to French commencing employment with Respondent. Although Petitioner continued in Respondent's employment for a period of two days after French began work, Petitioner had little or no interaction with him. The hiring of French for the position of maintenance supervisor at Respondent's facility, as articulated by Respondent's personnel at the final hearing, was accomplished on the basis of legitimate, non-discriminatory reasons. French had more recent supervisory experience, experience in maintenance, and presented himself more dynamically in the course of the interview process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 8th day of November, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-2. Accepted. Rejected, not materially dispositive. Rejected, subordinate to HO findings. 5.-6. Adopted by reference. Rejected, not materially dispositive. Rejected, relevance. Accepted. 10.-12. Rejected, not materially dispositive. 13. Rejected, Jones continued as the only maintenance person. No evidence suggests that he was ever permanently given the supervisor position. 14.-15. Accepted. 16.-25. Rejected, subordinate. 26. Accepted. 27.-34. Rejected, subordinate and not materially dispositive. 35. Rejected, relevance. 36.-38. Rejected, not materially dispositive. 39.-44. Rejected, subordinate to HO findings. 45.-53. Rejected, not materially dispositive. 54. Rejected, not supported by the weight of the evidence. 55.-57. Rejected, subordinate. Accepted. Rejected, mischaracterization of testimony, argumentative. 60.-63. Rejected, not materially dispositive. 64.-65. Rejected, relevance, weight of the evidence, mischaracterization of testimony. The budget increase reflected increased tasks being performed in house that were previously contracted. 66.-68. Rejected, not materially dispositive. 69. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-2. Accepted. 3. Rejected, relevance. 4.-19. Accepted, though not verbatim. COPIES FURNISHED: Jonathan S. Grout, Esq. Goldsmith & Grout, P.A. 307 W. Park Ave. Tallahassee, FL 32301 Cecile M. Scoon, Esq. 36 Oak Ave. Panama City, FL 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750 Dana Baird, Esquire Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750
The Issue The issue for determination at the final hearing was whether the contracting license of the Respondent Konrad v. Ising should be suspended, revoked, or otherwise disciplined by the Petitioner Department of Professional Regulation, for alleged violations of Chapter 489, Florida Statutes. At the final hearing Petitioner's Exhibits 1 and 2(a)-(g) were offered and admitted into evidence. The Respondent testified on his own behalf.
Findings Of Fact The Respondent Konrad V. Ising is licensed to practice contracting in Florida, and is a licensed certified general contractor holding license number CG C009669, a license current and active from 1982 through the present. The Respondent qualified Master Craft Constructors using license number CG C009669. During 1982, the Respondent entered into an association with Carlton Mosher whereby the Respondent would use his contractor's license to obtain building permits for construction projects which Mosher had contracted. The Respondent hoped his association with Mosher would lead to a partnership and assist him in obtaining practical experience in the construction field. During his association with the Respondent, Mosher was not a licensed contractor. In December 1982, Mosher, doing business as Re-Builders, contracted with Russell Hirstins to construct a room addition on his home at 4034 27th Avenue, St. Petersburg, Florida. On December 3, 1982, an application for a building permit for the job was submitted to the City of St. Petersburg and permit number 88638 was issued. The permit was obtained using the Respondent's license number and Respondent is listed as the job contractor. However, the Respondent performed no work on the Hirstins job, maintained no control over Mosher's work, failed to adequately supervise the project, and failed to qualify Re-Builders with the Construction Industry Licensing Board. Since becoming licensed in 1975, the Respondent has not been involved in any other disciplinary proceedings. At the final hearing, the Respondent candidly acknowledged that his association with Mosher was a regrettable mistake. The project was completed by Mosher to the apparent satisfaction to the Hirstins.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Construction Industry Licensing Board finding the Respondent Konrad V. Ising guilty of violating Section 489.129(1)(g) and (j), Florida Statutes, and imposing a $250 administrative fine. DONE AND ORDERED this 30th day of January 1984, in Tallahassee. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Konrad V. Ising Post Office Box 1023 Maitland, Florida 323751 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32302
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times material to this proceeding, Petitioner, an African-American female, was employed as a nurse at Bayside Manor ("Bayside"), a long-term nursing facility owned and operated by Respondent. Petitioner began her employment with Respondent in or around 2004, which continued until she resigned from her position on December 5, 2013. Petitioner's Complaint, which she filed shortly thereafter, raises two discrete claims. First, Petitioner asserts that, because of her race, Respondent treated her disparately by issuing her a written reprimand without cause. Petitioner further contends that she was constructively discharged from her position due to the existence of an intolerable, racially-charged working environment. Beginning with the first issue, it is undisputed that, on December 5, 2013, a member of Bayside's administration cited Petitioner for "failure to follow policies," and that the genesis of the reprimand was Petitioner's act of maintaining possession of a drug-cart key while taking a lunch break. The parties are in sharp disagreement, though, as to whether Respondent's policies required staff members to surrender drug- cart keys while eating lunch on site. On this point, the credible evidence demonstrates that, on the date of the purported infraction, Petitioner was required to turn in her drug-cart key during lunchtime only if she left the worksite. As it is evident that Petitioner remained at Bayside during her lunch break on the date in question, the undersigned is persuaded that the December 5, 2014, reprimand should not have been issued. This does not end the inquiry, however, as Petitioner must also demonstrate, in order to prove her claim of disparate treatment, that the reprimand constituted an adverse employment action and that it was issued on account of her race. Here, Petitioner's claim fails on the first prong (making it unnecessary to address the second), for the record is devoid of evidence that the December 5 reprimand led to a materially adverse consequence such as lowered pay, demotion, suspension, loss of benefits, or the like.1/ As for the claim of constructive discharge, the evidence adduced at final hearing focused almost exclusively on the conduct of Heidi Duncan, who served as Bayside's director of nursing during Petitioner's term of employment. In particular, Petitioner testified: that Ms. Duncan frequently spoke to her in a demeaning fashion; that, on one occasion, Ms. Duncan harshly——and erroneously——scolded her for leaving work unfinished at the end of a shift; that Ms. Duncan reassigned her to a different floor of the facility (by all appearances, a change that did not affect the terms of Petitioner's employment); that, on one particular day, Ms. Duncan brusquely instructed her to do as she was told, at which point Petitioner broke into tears; that Ms. Duncan forbade her (Petitioner's) husband from visiting Bayside because of his "black man's swagger"; that, on the lone occasion when she attempted to complain about Ms. Duncan to a member of Bayside's management, her concerns were brushed aside; and that Ms. Duncan attempted to stir up marital discord between Regine Smith——Petitioner's direct supervisor, who, in turn, reported to Ms. Duncan——and Ms. Smith's husband by telephoning Mr. Smith and informing him that Ms. Smith was nowhere to be found at the worksite.2/ According to Petitioner, the straw that broke the camel's back was Respondent's erroneous issuance of the December 5 reprimand. Assuming for argument's sake that Petitioner's recounting of the foregoing incidents was credible and, moreover, that each event was the product of racial animus, the evidence fails to satisfy the high threshold applicable to constructive discharge actions——namely, that the working conditions were so intolerable that a reasonable person would be forced into involuntary resignation. To be sure, the comment regarding Petitioner's husband was despicable and outrageous, and the undersigned has no doubt that Ms. Duncan's abrasive management style added unnecessary anxiety to an already stressful line of work. Nevertheless, as discussed below, it has not been shown that a reasonable person in Petitioner's shoes would have felt forced to quit, particularly since the credible evidence discloses only one attempt by Petitioner (on an unspecified date) to address her concerns with a member of Bayside's management. Accordingly, Petitioner's constructive discharge claim fails.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 18th day of December, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2014.
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Mr. Robinson, an African-American, was employed by Alliance at its Marianna, Florida, office from 1987 to 2006, when the facility closed. Mr. Robinson worked his way up from the assembly line, making $4.00 per hour, to steel yard coordinator, making $14.87 per hour. Mr. Robinson applied for the position of fabrication supervisor in 2004 and 2005. Both times, other people were chosen for the position. In 2004, Mr. Robinson was a finalist for the fabrication supervisor position. Steven Ramsey, a white male, was chosen for the supervisor position. Mr. Ramsey was hired from outside the company. Mr. Ramsey had considerably more experience as a supervisor than Mr. Robinson. In October 2005, the position for fabrication supervisor became vacant again. Mr. Robinson again applied for the position. The applicant pool was narrowed to two candidates, Mr. Robinson and John Warren (Mr. Warren), a white male. Both Mr. Robinson and Mr. Warren were interviewed by a committee consisting of the plant manager, the general manager, and hiring manager. Both candidates were current employees of Alliance. Alliance was looking for a supervisor with strong interpersonal skills. Both Mr. Robinson and Mr. Warren were valued employees of Alliance. In comparing their past evaluations at Alliance, Mr. Warren’s performance evaluations were stronger than Mr. Robinson’s. Mr. Robinson received two evaluations in 2004. On March 1, 2004, he received a score of 40 out of a possible 50. It was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. On May 12, 2004, he received a score of 40 on his annual evaluation. Again, it was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. Mr. Robinson received a score of 41 on his annual evaluation dated June 1, 2005. It was noted in his evaluation that he had improved in the area of interpersonal relationships over the past year. Mr. Warren received a score of 48 on his annual evaluation dated May 17, 2004. In the area of interpersonal relationships, his supervisor wrote: "Best in Fabrication." Leans forward to meet every challenge, keeps supervisors, peers and customers briefed at every step. Mr. Warren not only knows his customers, he has mastered the ability to identify customer needs before the customer realizes the need—and regularly exceeds customer expectations. Mr. Warren teaches customer service by example—what I call a "smooth operator." On his 2005 annual evaluation, Mr. Warren received a perfect score of 50. It was noted in his evaluation that Mr. Warren was a "solid role model." The evaluations of Mr. Warren and Mr. Robinson played an important role in determining who would be hired as fabrication supervisor. Based on the evaluations, Mr. Warren was the stronger candidate. Edward Mount (Mr. Mount) testified on behalf of Mr. Robinson. Mr. Mount is an African-American, who was employed with Alliance until November 2005. Mr. Mount left Alliance because the Alliance plant in Marianna was closing and would be relocated to Wisconsin. When Mr. Mount left Alliance, he was making $45,000 a year as a floor supervisor on the second shift. Mr. Mount felt that he had been treated fairly by Alliance and that Alliance had not discriminated against him based on his race during his employment with Alliance. During his tenure with Alliance, he was promoted more than five times and was given bonuses and raises. Mr. Robinson felt that Rick Frayniak (Mr. Frayniak), who was fabrication manager, was discriminating against him because of his race. However, Mr. Mount described Mr. Frayniak as a “hard but fair” supervisor, who had a hands-on approach to management. Mr. Mount never heard Mr. Frayniak make any racial remarks and did not feel that Mr. Frayniak had discriminated against him based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Robinson’s Petition for Relief. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007.
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of discrimination against the Petitioner on account of his sex (male). Embodied within that general issue are questions concerning whether the termination of the Petitioner from his job with the Respondent is an example of disparate discipline versus that meted out to female employees similarly situated; whether he was replaced by a person outside his protected class; and whether the Respondent's reasons for the termination were a pretext for intentional discrimination.
Findings Of Fact The Petitioner, at times pertinent hereto, was a male employee of the Respondent and was a "lead line operator" on a plywood manufacturing production line at the Respondent's plywood mill located in Hinson, Florida. The Petitioner claimed that he was subjected to a discriminatory employment practice on account of his sex (male), by being terminated based upon an altercation he got into with a female employee, who was not disciplined. The Respondent is a forest-products company producing lumber and plywood at its mill in Hinson, Gadsden County, Florida. The Respondent is an employer, an envisioned by Section 760.10, Florida Statutes, and the Petitioner at times pertinent hereto was its employee. On November 16, 1993, the Petitioner engaged in an altercation with another employee, Angela Brown, a female, the ultimate result of which was that he was terminated by the Respondent for threatening another employee. The Respondent has a "zero tolerance policy" for instances where employees threaten other employees. Pursuant to its written employee disciplinary policy, it can, in its discretion, immediately terminate such an employee, rather than engage in its four-step, gradual disciplinary procedure. No management personnel with employment disciplinary authority of the Respondent company witnessed the incident. The management with such decision-making authority gained its knowledge of the incident and made its decision based upon the results of the company's investigation of the matter, including conducting interviews with, and taking statements from, witnesses to the incident. The incident occurred approximately 6:15 a.m. on the "graveyard shift", which ran from 11:00 p.m. at night to 7:00 a.m. in the morning. The incident occurred when the Petitioner observed that the production line had stopped, with the stoppage appearing to occur at or near Angela Brown's work station. The Petitioner went to her work station to see what the problem was, suspecting that she was "sleeping on the job". After straightening the veneer sheets lying on the production line conveyor, the Petitioner set the production line in motion, at which point he was standing behind Ms. Brown, out of her eyesight. While helping her straighten the veneer on the production line, he had been standing directly to her right. When he re-activated the line, he had gone back to the area of the control box and was standing behind her where she was unable to see him. He did not tell her that he had moved to the position to her right rear, after straightening the veneer. During questioning by his counsel, the Petitioner stated that he was standing back by the control box after he turned the production line back on and immediately before Ms. Brown hit him with a piece of veneer. Later in his testimony, the Petitioner claimed that he was standing beside her at the point when she discarded the veneer. The preponderant evidence establishes that the Petitioner was standing to the right rear of Ms. Brown at the time she discarded the veneer in question. She believed that he had left her area and did not know that he was still standing behind her because her back was to him. She did not have time to check behind her to see if anyone was there before discarding the piece of plywood veneer because the production line moves at a rapid rate. She therefore had to concentrate and watch the plywood as it came by, in order to timely remove defective pieces of veneer. It is common practice for employees or managers to notify an employee at a work station that they are behind them, so that the employee will know not to throw defective sheets of plywood off the production line, thus, potentially hitting someone standing behind them. The Petitioner did not notify Ms. Brown that he was still behind her, and she did not know that he was there, thinking he had left her area. After he re-started the conveyor, and Ms. Brown believed that he had left her area, another defective sheet of veneer came down the production line. The trailing edge of the veneer was defective. When a trailing edge of a piece of veneer is defective, it is common practice for an employee to discard it to his or her right rear and throw it off the production line. If the leading edge of the veneer had been defective, it would have been discarded to the left rear of the employee removing it from the production line. When the sheet of veneer came down from the "sheet drop", and Ms. Brown noticed the trailing edge as defective, she started removing the wood from the production line. She pulled the sheet off to the right in the normal procedure for this sort of defect. The Petitioner maintained that she threw the wood at him intentionally, as evidenced by his view that she was not throwing the wood off on the correct side. However, Ms. Brown, as corroborated by witnesses Strickland and Jenkins' testimony, stated that it is common practice for employees to pull veneer off to the right when it is defective on its trailing edge. There was only one piece of veneer to be discarded by Ms. Brown. She picked the veneer up and had to fold it in order to handle it and get it out of her way. She folded the veneer and threw it to her right rear, striking the Petitioner on or about the nose. After she discarded the piece of veneer and struck the Petitioner with it, he immediately pushed her with his hands and raised a fist up as if to strike her. In his testimony, he stated his position that Ms. Brown remained stationary at the point when she allegedly hit him with a second piece of veneer. He denied that she had taken steps backward from her position towards the production line and away from the Petitioner. He maintained, instead, that she had taken aggressive steps toward him. Witness Chadwick Jenkins, however, who was located three to ten feet away during the incident, saw Ms. Brown take two steps backward towards the production line, retreating from the Petitioner. This was consistent with Ms. Brown's testimony that the Petitioner had pushed her backwards. The Petitioner testified that Ms. Brown hit him with two pieces of wood veneer. His testimony indicates that he claims that she folded the piece of veneer and started to throw it or "yank it around", but that, in effect, it broke into two pieces, and he was hit with the top piece which she had in her hands, the bottom half having fallen on the floor. Then, according to the Petitioner, she reached down, picked that other piece up, threw it, and hit him with it. Ms. Brown denies his claim that he was hit with two pieces of veneer. On direct examination, she was emphatic in saying that she did not throw two pieces of veneer, that the sheet was too big and that she had to fold it to remove it from the production line, and that only one sheet was involved. She had to act quickly in throwing it off the production line to keep the line clear and moving. The sheet did not split in half. The Petitioner also testified that Ms. Brown looked him "dead in the eye" when she allegedly threw two sheets of veneer at him. Ms. Brown denies this, stating that she did know that the Petitioner was even behind her, because she was looking at the production line and that it was necessary to look at the line in order to see the defective sheet of veneer and to be able to reach down and discard it before the line moved past her position. This testimony is corroborated by that of Mike Strickland, the "lay-up line superintendent", who testified to the effect that, in order to discard wood from the production line, one has to be looking at the line and facing the line with one's body so that one's hands and eyes coordinate, in effect, to remove the sheet of veneer from the production line. When this is done, because of time constraints, one must simply pick up the sheet, pull it around and discard it behind you in one quick motion, keeping eyes and body facing the production line. This testimony corroborates that of Ms. Brown to the effect that she was looking at the production line and did not realize that the Petitioner was behind her or realize that she had hit him with the wood until he forcibly pushed her. Additionally, the testimony of Chadwick Jenkins and Donald Cooper corroborates Ms. Brown's version of events. Mr. Jenkins testified that Ms. Brown folded the sheet up and grabbed it by the end to remove it, and he knew that this was the only sheet removed because he only had to replace one sheet of veneer to the production line. Mr. Cooper saw only one piece of veneer thrown or discarded. He had an unobstructed view of those events, and the Petitioner himself corroborated the fact that the view was clear from where Mr. Cooper was located at the far end of the line to the place where the incident occurred. The Petitioner testified that one can see all the way down the line while walking up and down the line. Mr. Cooper was in a position to see the incident because he was on a raised platform. Thus, the totality of credible, preponderant evidence establishes that Ms. Brown hit the Petitioner with only one piece of veneer. The evidence also establishes that Ms. Brown's striking of the Petitioner with the single piece of veneer was not intentional. After the piece of veneer inadvertently struck the Petitioner, he immediately shoved Ms. Brown and raised his fist as if to hit her. He testified that he was merely acting in self defense because he "just wanted her to quit coming up on me". The Petitioner's version of the events is that Ms. Brown walked into his outstretched hand. In fact, witness Jenkins stated that he saw the Petitioner with his fist up in the air and his other arm out straight. Mr. Jenkins further testified that when the Petitioner raised his fist in anger, he appeared to be in control of himself and to be aware of exactly what he was doing. Mr. Jenkins' observation of those events led him to interpret the situation to the effect that "it looked like he was fixing to hit her". Mr. Cooper saw the Petitioner as "Howard pushed her and he took his hand back and drew back to punch her". Mr. Cooper testified that when the Petitioner drew back as if to punch Ms. Brown, she looked as if she was in shock. Mr. Cooper saw no indication that Ms. Brown had advanced on the Petitioner and walked into his outstretched arm. Ms. Brown testified in a similar manner stating that when she inadvertently hit the Petitioner with the sheet of veneer, "He pushed me hard like this (indicating) and he told me that he would knock my 'm-f' off, and I told him he was 'f'ing' crazy. . . . Q: OK. Did you feel threatened at that point? A: Of course. As big as he is. Of course, I felt threatened. I thought he was going to knock me out. Q: What was your natural response at that point? A: I told him he was crazy. I got away from him. " The Petitioner claimed for the first time, during his closing statement made at the unemployment appeals hearing, that he felt threatened about falling into the production line conveyor chain. The testimony of both Mr. Jenkins and Mr. Cooper, however, belies the Petitioner's position in this regard. They established that the Petitioner was not pushed toward the chain and that Ms. Brown did not move toward him in an aggressive manner or move toward him at all. The Petitioner remained stationary during the incident and was never in a position so that he could have been in danger of falling on the production line chain. The specific opening which the Petitioner claimed he could have fallen into was protected by guardrails, as shown by witness Jenkins. Ms. Brown told the Petitioner that she was going to tell Earl Lee, their supervisor, about the incident. She walked to the end of the production line looking for her supervisor and saw Mr. Cooper, who directed her to Mr. Lee's location. Ms. Brown then went upstairs and found Mr. Strickland, the lay- up line supervisor, and Earl Lee to tell them about the incident. Although the Petitioner maintains that Ms. Brown was the aggressor in the incident and that he was only defending himself, the Petitioner never made an effort to notify anyone of the incident. Upon Ms. Brown's report of the incident, an investigation was commenced by the company to determine what had happened and who was at fault. The investigation began with Mr. Lee questioning Ms. Brown and the Petitioner about the incident. During the questioning, the Petitioner told Mr. Lee, Jim Stelbasky, and Mike Strickland, all supervisory personnel, that he would have hit Ms. Brown if she had been a male. Ms. Brown gave details of the incident to Mr. Lee, as well. She told Mr. Lee that she hit the Petitioner with some veneer but that it was accidental. Witnesses Jenkins and Cooper gave statements to Mr. Lee about the incident. Each claimed that they were witnesses to the incident in whole or in part. They gave statements concerning their observations regarding the incident to Mr. Lee, which are contained in Respondent's Exhibits 11 and 12, in evidence. Mr. Lee and other management personnel with decision-making authority in employment discipline matters did not observe the incident. Therefore, Mr. Lee, in making his investigation, relied upon the statements of Mr. Jenkins, Mr. Cooper, the Petitioner, and Ms. Brown and considered all of them in making a decision. The statements of Mr. Jenkins, Mr. Cooper, and Ms. Brown, along with Mr. Lee's belief that in this circumstance, the victim, not the aggressor, would be the one likely to report such an incident, were consistent and persuasive to the effect that the Petitioner was the instigator or aggressor in the incident. Therefore, in accordance with the results of Mr. Lee's investigation and pursuant to consistent company policy of terminating employees for threatening other employees, even for the first offense, the Respondent elected to terminate the Petitioner from employment. Mr. Lee, the decision-maker herein, believed Ms. Brown and the witnesses who corroborated her version of events. He determined that, in his mind, they were telling the truth. Mr. Lee thus believed that the Petitioner was threatening another employee and under the company policy, that was cause for termination. Consequently, he did so, although he testified that he did not terminate the Petitioner because he was a male and that his sex had nothing to do with his decision. It also had nothing to do with the decision that Ms. Brown should not be reprimanded. He did not reprimand Ms. Brown because he did not feel that she was at fault in the incident. He felt that the Petitioner was the aggressor, which is why the Petitioner was disciplined and Ms. Brown was not. The Respondent has a policy providing that when any employee makes any type of threat against another employee, the graduated disciplinary procedures are not applicable, rather, termination can be immediately meted out. It is noteworthy, in terms of establishing that this is a regularly-followed practice, and in refuting the Petitioner's claim that he was discriminated against because he is a male, that approximately two weeks prior to the Petitioner's termination, the Respondent terminated a female employee for fighting on the job. This substantiates that the Respondent has a consistent policy of not tolerating threats made against any other employees by an employee, regardless of that employee's gender. The testimony of Steve Hoffman, the Respondent's Human Resources Officer, shows that in his two and one-half years in that capacity or a related capacity with the company, in any case where an employee has been determined to have made threats against another employee, the company consistently terminates such an employee. The Petitioner has simply not established that he has been the victim of disparate treatment because he is a male. It was not demonstrated that upon his termination, the Petitioner was replaced by an employee of another class, i.e., a female, nor did the Petitioner demonstrate that the Respondent has meted out less severe discipline to such offending employees who are non-male. In fact, the Petitioner himself was replaced with a male employee. There has simply been no proof to establish that the employment decision herein, however harsh it may seem, was motivated by discriminatory intent to single out the Petitioner for disparate treatment because he is a male.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Commission on Human Relations which dismisses the Petition in its entirety. DONE AND ENTERED this 24th day of April, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4718 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6-18. Rejected, as not entirely in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. 19-21. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as irrelevant and immaterial. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter based thereon. 24-25. Accepted, but not dispositive of the material issues presented. Accepted, only in the sense that there is not a written formal reprimand in the Petitioner's personnel file. The evidence reflects that he had been informally admonished or disciplined concerning acts related to his temper. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and for the reason that it was not necessarily a first offense since the Petitioner had been informally disciplined concerning his past inability to control his temper at times. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact, to the extent they are not inconsistent with the Hearing Officer's findings of fact, are accepted. To the extent that they are so inconsistent, they are rejected as not being supported by preponderant, credible evidence of record, as being immaterial, irrelevant, or unnecessary. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 Ms. Marilyn Strange Coastal Lumber Company Post Office Box 1128 Havana, Florida 32333 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
